isen.blog

Susan Crawford reads the FCC brief in the Broadcast Flag case as a "breathtaking" expansion of its charter that could firmly establish FCC control over every device and communications medium that is capable of handling digital TV content -- and what device these days isn't? -- no matter how abundant the medium or how narrowcast and private the message. She writes:

The broadcast flag rule, distilled to its essence, is a mandate that all consumer electronics manufacturers and information technology companies ensure that any device that touches digital television content encrypt that content and protect it against unauthorized onward distribution.

In order to make this happen, the FCC has established a new and extraordinarily broadregulatory regime that mandates the use of "authorized" content protection technologies by virtually every consumer electronics product and computer product -- including digital television sets, digital cable set-top boxes, direct broadcast satellite receivers, personal video recorders (PVRs), DVD recorders, D-VHS recorders, and computers with tuner cards.

In the context of both the flag rule and the IP-enabled services proceeding that was the subject of Bellhead/Nethead earlier this fall, the FCC has said that it has "ancillary" jurisdiction to act. Translation: "Congress hasn't said that we DON'T have the power to do this, so we're going to go ahead on the assumption that we do."

The FCC's brief, filed in response to PK's challenge to FCC's jurisdiction in the flag matter, is breathtaking. FCC's position is that its Act gives it regulatory power over all instrumentalities, facilities, and apparatus "associated with the overall circuit of messages sent and received" via all interstate radio and wire communication. That's quite a claim.

Want the FCC regulating your Internet feed? Telling you whether you can say F**k or not? Pay attention to this one!

UPDATE: Cory and David W. are also concerned about this one.
UPDATE 2: John Lebkowsky blogged it at Smart Mobs.
UPDATE 3: Dan Gillmor weighs in.